BILL NUMBER: S7448

SPONSOR: BRISPORT
 
TITLE OF BILL:

An act to amend the social services law, in relation to kinship guardi-
anship of children whose parental rights were surrendered or terminated

This is one in a series of measures being introduced at the request of
the Acting Chief Administrative Judge upon the recommendation of her
Family Court Advisory and Rules Committee.

New York State, as well as Federal, law has long favored placements with
relatives as a means of achieving permanency for children in cases in
which they cannot remain or be reunited safely with their parents. Most
recently, enactment of the State legislation implementing the Federal
Family First Prevention Services Act of 2018 (FFPSA) underscores the
importance of considering foster family settings, especially in kinship
homes, as a means of preventing inappropriate placements of children in
congregate care settings. See Public Law 115-123); Laws of 2021, chapter
56, Part L.

The enactment of the subsidized kinship guardianship assistance program
("KinGAP") in 2010 marked a milestone in adding a valuable permanency
              

alternative to the menu of options available to expedite the exodus of
children from foster care into permanent families. See L.2010, c. 58,
part F § 4. Experience with the program, especially in New York City
where it is frequently utilized, has demonstrated its enormous value,
not only for the children and families who are its beneficiaries, but
also for New York State in its constant quest to improve its record in
achieving timely permanency for the children in its care. Successive
enactments expanding eligibility for KinGAP - encompassing destitute
children in 2011 (L. 2011, c. 607) and allowing "virtual" kin, not
simply blood relatives, to apply to be KinGAP guardians in 2017 (L.
2017, c. 384) - underscored the importance of KinGAP as a permanency
alternative for children before the Family Court.

In applying the KinGAP statute, however, our Family Court Advisory and
Rules Committee has identified a gap in the definition of "child" -
probably an inadvertent omission that has proven to be an impediment to
utilization of the program for one narrow category of children.  We,
therefore, is propose a measure to amend subdivision one of section
458-a of the Social Services Law to add a child surrendered from foster
care under Social Services Law § 383- c to the definition of a child who
would be eligible for inclusion in the KinGAP program. Like all children
receiving KinGAP assistance, such a child:

(i) would have had to have been in foster care for at least six consec-
utive months in foster care with and have a demonstrated "strong attach-
ment" to the prospective guardian;

(ii) would need to have had "guardianship and custody" or "custody, care
and custody" transferred to a social services official prior to the
child's 18th birthday;

(iii) would have had consultation with the court and, if over the age of
14, to have consented to KinGAP; and

(iv) would not be a candidate for adoption.
See Soc. Ser. L.  §§ 458-a(1), 458-b(1).

Significantly, the KinGAP definition already includes children whose
parental rights were surrendered when they were not in foster care under
Social Services Law § 384, as well as children voluntarily placed in
foster care under Social Services Law §§ 358-a and 384-a and children
whose parental rights were terminated under Social Services Law § 384-b.
Since children surrendered directly from foster care under Social
Services Law § 383-c may also be able to meet all of the KinGAP eligi-
bility criteria, there is no reason that they should be excluded from,
and not enjoy the benefits of, the KinGAP permanency option.

The omission of Social Services Law § 383-c from the enumerated eligi-
bility categories for KinGAP has a very real impact upon real children.
Consider an example of a child in foster care, who has a strong
relationship with a kinship foster parent and whose parent is supportive
of the agency's permanency goal of referral for legal guardianship with
the relative under KinGAP. If the parent is a respondent in either a
child protective proceeding under Article 10 of the Family Court Act or
a termination of parental rights under Social Services Law § 384-b, the
parent would have no means of expediting fulfillment of this goal by
voluntarily surrendering the child under Social Services Law § 383-c.
Instead, the parent would need to either proceed to trial, thus possibly
subjecting the child to the trauma of testifying, or to admit to the
charges presented with the collateral consequences such admissions
entail.' Ironically, if the parent in such a situation surrenders the
child under Social Services Law § 383-c, the child would be eligible for
adoption, not KinGAP. It seems odd that a program designed to make it
easier to achieve permanency for children by preserving family ties can,
in some instances, makes it harder. This measure, which w ould simply
add Social Services Law § 383-c to the eligibility categories, would
rectify this disparity.

This measure shall take effect immediately.

 
LEGISLATIVE HISTORY:

None.  New Proposal.

1 For example, a fact-finding order in a child protective proceeding
results in an irrebuttable presumption that a report to the Statewide
Central Register of Child Abuse and Maltreatment is indicated, which may
have implications for respondent's future employment prospects, custody
and visitation proceedings. See Soc. Ser. Law § 422(8)(b)(ii); D.R.L. §
240(1)(a).